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US immigration
Trump’s battle with judges sets stage for constitutional showdown
After loss in appeals court, questions mount over how far rhetorical fight will go
Donald Trump's clash with the judiciary over his travel ban is likely to be taken to the highest level © FT montage
8 MINUTES AGO by: David J Lynch in Washington
Three weeks after taking office, President Donald Trump (http://next.ft.com/content/4082
5e36­ef3f­11e6­930f­061b01e23655) is embroiled in a feud with the nation’s judges that has
legal experts and Democrats warning of a possible constitutional showdown.
The president’s repeated personal attacks (http://next.ft.com/content/36acfc86­ed9b­11e6
­930f­061b01e23655) on judges reviewing his controversial travel ban — including a call to
“blame the court system” if a terror attack happens soon — have alarmed critics who detect
an authoritarian streak in the former reality television star.
An administration that delights in shattering political norms may push its rebel ways too
far, they fear, threatening the separation of powers that is the foundation of the American
system and inciting the worst political crisis since Watergate.
“We’re dealing with a president who has no respect for the basic institutions of our society,
including an independent judiciary and the Fourth Estate,” said Laurence Tribe, a professor
of constitutional law at Harvard Law School. “This is just the tip of a very scary iceberg that
the ship of state is heading toward.”
Over the past week, Mr Trump has denigrated the district court judge in Seattle who
blocked his 120­day global ban on refugee admissions and 90­day halt to arrivals from
seven majority­Muslim nations and questioned the competence of an appeals court. The
president referred to a “so­called judge” and said even a “bad high school student would
understand” that he has the authority to limit entry to the US.
Neil Gorsuch, Trump's US Supreme Court nominee, reportedly said the president's attacks were 'demoralising' © Getty
Even before a federal appeals court refused (http://next.ft.com/content/8673d6c6­ef2c­11e
6­930f­061b01e23655) on Thursday night to reinstate the travel ban, the White House was
on the defensive over reports that Judge Neil Gorsuch (http://next.ft.com/content/40f2fff6
­e8a0­11e6­893c­082c54a7f539), Mr Trump’s Supreme Court nominee, had told senators
the president’s jibes about the judiciary were “disheartening” and “demoralising”.
Sean Spicer, the White House press secretary, insisted that Mr Gorsuch was speaking
generally about attacks on judicial independence rather than responding to the president. But the White House counterattack was undermined by Republican senator Ben Sasse, who
said Mr Gorsuch had been talking about Mr Trump. “I asked him about the ‘so­called
judges’ comment,” Mr Sasse said. “He said any attack on any — I think his term to me was
brothers and sisters of the robe — is an attack on all judges.”
Instant Insight
The ruling against
Trump’s travel ban
dissected (http://next.ft.c
om/content/c3a48748-ef
6d-11e6-930f-061b01e23
655)
Alberto Gonzales, attorney­general under
President George W Bush, agreed that Mr Trump’s
remarks were ill­considered. “It’s not something I
would ever do. I can’t imagine President Bush ever
saying anything like that.”
With the president accusing the US Court of
Appeals for the Ninth Circuit judges of being
motivated by politics, some worry that Mr Trump
Cleverly structured opinion could
allow conservatives to back liberal
constraints, writes Brooke Masters
might ultimately defy an unfavourable Supreme
Court (http://next.ft.com/content/b4d145e4­ed42
­11e6­ba01­119a44939bb6) ruling. Already, immigration officers at Washington
Dulles International Airport ignored a court order
in the travel ban’s initial hours and refused to
allow detained travellers access to attorneys.
On Thursday night, a defiant Mr Trump responded to his appeals court loss by tweeting (htt
ps://twitter.com/realDonaldTrump/status/829836231802515457): “SEE YOU IN COURT,
THE SECURITY OF OUR NATION IS AT STAKE!”
Senator Richard Blumenthal, the Connecticut Democrat who first disclosed Mr Gorsuch’s
comments, said the US “is careening, literally, toward a constitutional crisis”.
Erwin Chemerinsky, dean of the University of California, Irvine, law school, said via email:
“President Trump’s attack on the federal judiciary is unprecedented for a president. To be
sure, presidents have at times criticised decisions, but never in such harsh terms as
President Trump has done. The judiciary is crucial to check presidential — and all
governmental abuses. It is clear that he does not want checks from anyone.”
Trump's Tweet on February 4 was one of a series attacking judges who ruled against the travel ban
At the White House, Mr Spicer said presidential complaints about unfavourable court
rulings are “as old as our republic”, adding that the press was applying a “double standard”
to Mr Trump.
Indeed, Mr Trump’s predecessor criticised a Supreme Court ruling during his 2010 State of
the Union address.
“With all due deference to separation of powers, last week the Supreme Court reversed a
century of law that I believe will open the floodgates to special interests, including foreign
corporations, to spend without limits in our elections,” Barack Obama had said, with the
high court justices seated just a few feet in front of him.
That remark prompted Justice Samuel Alito to shake his head in disagreement and mouth
what appeared to be the words “not true”. Gillian Tett
The real risks of keeping
America safe (http://nex
t.ft.com/content/a48363
But Mr Obama’s complaints about the court’s legal
reasoning were in line with traditional practice,
according to Eric Posner, a University of Chicago
t.ft.com/content/a48363
60-ecbc-11e6-930f-061b
01e23655)
law professor. Political candidates and sitting
presidents alike, for example, have long criticised
the Supreme Court’s 1973 Roe v Wade abortion
rights decision.
‘The chance of dying in a terrorist
attack by a refugee is lower than the
risk of being struck by lightning’
Mr Obama may have breached decorum by using a
high­profile political venue to censure the justices
in their presence, Mr Posner said. But Mr Trump’s
personal barbs seem designed to undermine
judges’ legitimacy.
“There’s a very strong constitutional norm that a
president will obey a judicial order directed at
him,” said Mr Posner. “That’s what’s at stake here.”
Mr Trump is familiar with the legal system. He has been sued thousands of times, including
by vendors alleging that he failed to pay for completed work. Earlier this week, liberal
groups including Public Citizen sued the president in US District Court in Washington,
arguing that he had exceeded his authority by issuing an executive order requiring federal
agencies to scrap two regulations for every new rule.
The president’s judicial gripes are unlikely to be welcomed at the Supreme Court. Chief
Justice John Roberts, a Republican appointee, devoted his annual report this year to the
unsung virtues of the nation’s 600­plus district court judges, saying they “deserve
tremendous respect”.
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Latest on US immigration
Gillian Tett
The real risks of keeping America
safe